Inside the Aereo Copyright ControversyDialogue with the Alter Ego on a US Supreme Court’s ruling, first drafted on June 27,published on June 29, 2014--------------------------------------------------------------------------------------------------------------------------------

Today’s decision by the United States Supreme Court is a massive setback for the American consumer … [and] … sends a chilling message to the technology industry. … [In fact, it] … begs the question: Are we moving towards a permission-based system for technology innovation? Consumer access to free-to-air broadcast television is an essential part of our country’s fabric. Using an antenna to access free-to-air broadcast television is still meaningful for more than 60 million Americans across the United States. And when new technology enables consumers to use a smarter, easier to use antenna, consumers and the marketplace win. Free-to-air broadcast television should not be available only to those who can afford to pay for the cable or satellite bundle.Excerpt from Aereo’s reaction to the US Supreme Court ruling

Question by Alter Ego of Noah denkt™ (AE): On June 27, the US Supreme Court ruled in a split decision (6:3) against Aereo, a tech start-up from New York City, which offers an antenna-plus-cloud-storage technology that allows customers to capture live, over-the-air network TV content and stream it down to their computers. The Court argued that such a service violates the copyright of TV broadcasters and their distributors and is illegal if operated without paying broadcasters any fees. This ruling has caused a lot of uproar in the tech community. The industry fears that this decision could hamper technological innovation, particularly in the field of cloud computing and give undue preference to old industry interests and yesteryear intellectual property concerns. Does Noah denkt™ have an opinion about this?

Answer by Noh denkt™ (Nd): Well, we have tried to get up to speed with the intricacies and implications of this Supreme Court decisions. Obviously, we are neither technology nor legal experts. But we have common sense and that’s why we can’t help but be surprised about the outraged disbelief that the Aereo decision has provoked in the tech community. Is it not clear that those who own the rights to a content should be adequately compensated for granting access to that content?

AE: In the embattled field of digital copyright protection, the Supreme Court tends to differentiate between private and public performances. Private performances generally don’t pose a copyright problem while public performances do.

Nd: Right. So, where is the problem?

AE: Well, the entire cloud-computing industry, including Aereo, is operating under the notion that streaming services are abiding by copyright law since the legally obtained streaming content is delivered at the request of one specific individual to that very individual in private. In other words, there is no public performance here. And Justice Scalia has validated this view in his dissenting opinion. Obviously, the majority Court vote in the Aereo case puts that private performance premise on the docks again.

Nd: To our small brain it seems as if we are mixing up various issues here. Supposedly, not all cloud computing companies have a business model that is essentially build on the idea of capturing other companies’ content, correct? So where is the challenge to the entire streaming business? Secondly, the private performance notion in the Aereo case is obviously put into question by the mere fact that it is content created for public performance which is being streamed to albeit actively requesting individuals. But, - and that is a big “but” -, this servicing of individual streaming requests happens on an industrial scale. We are, hence, scratching the line towards a public performance at least twice here. That somehow changes the nature of the service, don’t you think? And thirdly, no one is telling Aereo to go out of business. It could still sell its technology and intellectual property to the broadcaster or pay them a certain fee to use their content.

AE: First, the current ruling may require all streaming services to make sure that none of their cloud-stored content has been copied illegally. In other words, cloud operators would have to sniff around into what customers store on their cloud. That’s not a great prospect, is it? Secondly, scratching the line towards public performances doesn’t mean crossing it. And thirdly, it has been made clear by Aereo that it doesn’t have the funds to pay for the captured TV content.

Nd: Let’s not get hysterical here. The overall business model of a cloud computing company gives a meaningful indication whether there is reason to be worried about structural or habitual infringement of copyright law. Secondly, when in doubt we should err on the side of the protection of intellectual property and copyright and not on the side of what can be done technically. And thirdly, as far as Aereo’s future is concerned it should be just as much about execution as business savvies have us believe is the case in all other business ventures..AE: Why should we err on the side of copyright protection when it is innovation that our lackluster economies needs so desperately?

Nd: Because it is in the interest particularly of innovators that their intellectual property rights be treasured and respected. Why would anyone want to go to the extremes of creating something if he can’t expect that his work may get duly accredited and compensated?

AE: Creators create things because that’s the way they are. They have to do create. It is like an obsession or a curse that is driving them. And that is particularly true for those who create content. Compensation is only of secondary importance to them. In fact, you could argue here, that for content creators it is more important to get exposure and attention than copyright protection. After all, it’s a hassle to get noticed anyway.

Nd: But you still want credit for your work, don’t you?

AE: You want market share more than credit. Because the credit comes with market share. See how Facebook became what it is today…

Nd: In the Aereo case, however, the content creators already have market share. After all, they are firmly lodged with the broadcasters. So what good does more bona fide market share work do to them?

AE: Well, at least they are helping a new technology to piggy-bag their success.

Nd: So, you are talking charity now. But in charity, you are free to donate. What you are advocating here is a forced donation. It is, therefore, no longer charity you ask but regulated theft you want to impose. And we won’t be part of that ….

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